IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.141 of 2009 1.Elumalai 2.Velan @ Vetrivelan 3.Gnanamoorthy 4.Madraskaran @ Raja 5.Datchanamoorthy 6.Vadivel 7.Kathavarayan 8.Sundaravel .. Appellants vs Union Territory of Pondicherry Represented by The Inspector of Police Thavalakuppam Police Station Puducherry (Cr.No.173/2005) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the III Additional Sessions Judge, Puducherry, made in S.C.No.1 of 2006 dated 27.1.2009. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.R.John Sathyan for A-1 to A-3 Mr.K.Srinivasan for A-4 & A-5 Mr.R.C.Paul Kanagaraj for A-6 to A-8 For Respondent : Mr.M.R.Thangavel Government Advocate (Crl.Side), Pondicherry JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Additional Sessions Division, Puducherry, made in S.C.No.1 of 2008 whereby the appellants 8 in number ranked as A-1 to A-8, along with the other accused ranked as A-9 to A-14 stood charged, tried and found guilty as follows:
ACCUSED
CHARGES
FINDING
PUNISHMENT
A-1 to A-14
148 IPC
A-1 to A-8 guilty and A-9 to A-14 not guilty
3 years R.I. with a fine of Rs.1000/- and default sentence
A-1 to A-14
302 r/w 149 IPC
A-1 to A-8 guilty and A-9 to A-14 not guilty
Life imprisonment with a fine of Rs.1000/- and default sentence
A-1 to A-14
326 r/w 149 IPC (2 counts)
A-1 to A-8 guilty and A-9 to A-14 not guilty
6 years RI with a fine of Rs.1000/- and default sentence
A-1 to A-14
324 r/w 149 IPC
A-1 to A-8 guilty and A-9 to A-14 not guilty
3 years RI with a fine of Rs.1000/- and default sentence
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.Ws.1 to 7 are natives of Nallavadu Village. All the accused also belonged to the same place. Pursuant to the Tsunami that took place on 26.12.2004, the grants were released by the Government for the purpose of distribution to the affected persons through the Village Panchayat. One Subramani was the President of that Panchayat. A-1 was the Vice President, and the deceased Reagan was the Treasurer. On 4.10.2005, a cheque was issued to A-1 for Rs.9 lakhs by the Government for the purpose of distribution. Reagan asked A-1 for the appropriate distribution of the amount to the villagers. A wordy quarrel broke out between them. Following the same, on 5.10.2005, at about 5.00 A.M., P.W.1 heard the noise on the northern side, and when he went nearby, he found the deceased along with P.Ws.2, 3, 4 and 5 proceeding. At that time, they found all these accused persons armed with parangi and sulukki in their hands. It was A-1 who cut the deceased on the hand. A-2 cut him on the back. P.W.4 intervened to the rescue. A-2 immediately cut him on the left hand. Then Reagan fell down due to the cut injuries sustained by him. At that time, A-3 attacked him on his right side of the neck. A-4 attacked him indiscriminately on both of his hands. A-5 also attacked him on the back with parangi. When P.W.3 intervened, P.W.6 attacked him with sulluki. P.W.5 intervened in order to save the deceased from the attack. At that time, it was A-7 who attacked P.W.5, and he sustained injuries. A-8 to A-14 also attacked the deceased Reagan with sullukis. This was witnessed by all the other witnesses. While there was a distressing cry, the accused fled away from the place of occurrence with the weapons of crime.
(b) The deceased Reagan with severe injuries was taken to the hospital where he was declared dead. An intimation was given to the respondent police station by the Head Constable of the Out-Post Police Station attached to the Government Hospital. The injured witnesses were also taken to the hospital. P.W.10, the Doctor, examined P.W.5 at 6.45 A.M., and the wound certificate is marked as Ex.P15. He also medically examined P.W.4 at 6.50 A.M., and the wound certificate is marked as Ex.P16. P.W.9, the Doctor, examined P.W.3 at about 9.20 A.M., and the wound certificate is marked as Ex.P14.
(c) On receipt of the intimation, P.W.23, the Sub Inspector of Police, rushed to the hospital, and the statement of P.W.1 was recorded by him. It is marked as Ex.P1. Along with Ex.P1, he returned to the police station and a case came to be registered in Crime No.173 of 2005 under Sections 147, 148, 302 and 324 r/w 149 of IPC. The printed FIR, Ex.P37, was despatched to the Court.
(d) P.W.24, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the place of occurrence, made an inspection and prepared an observation mahazar and also a rough sketch. Then he conducted inquest on the dead body of Reagan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P38. A requisition was sent to the hospital authorities for the purpose of autopsy.
(e) P.W.8, the Specialist G-II & Head, Department of Forensic Medicine, General Hospital, Pondicherry, on receipt of the said requisition, conducted autopsy on the dead body of Reagan and has issued a postmortem certificate, Ex.P7, with his final opinion under Ex.P9 that the cause of death of the deceased was due to shock and haemorrhage due to injury to the neck and the individual has consumed alcohol.
(f) Pending investigation, A-1, A-3, A-4, A-6, A-7, A-8, A-9, A-11, A-12 and A-14 were arrested by the Investigator. At that time, A-1 gave a confessional statement. The admissible part is marked as Ex.P26. Pursuant to the same, he produced M.O.7 series, sullukis, and M.O.8 series, parangis. He also produced M.O.9, lungi, and M.O.10, shirt. They were all recovered under a cover of mahazar. A-3 gave a confessional statement which was recorded, and he produced M.O.11 lungi and M.O.12 shirt, which were recovered under a cover of mahazar. These accused were sent for judicial remand.
(g) The Investigator came to know that A-2, A-5, A-10 and A-13 surrendered before the Court. He took custody of these accused. A-2 gave a confessional statement, and M.Os.13 and 14, sullukis, produced by him, were recovered under a cover of mahazar. They were sent for judicial remand. All the material objects recovered from the place of occurrence and also from the dead body and the weapons of crime and the clothes recovered at the instance of the accused on the confessional statements were subjected to chemical analysis, and Ex.P31 is the Chemical Analyst’s report received by the Court.
(h) P.W.25, the Inspector of Police, took up further investigation, and he altered the case to Sections 147, 148, 302, 326 and 324 r/w 149 of IPC. Ex.P39, the alteration report, was sent to the Court. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 25 witnesses and also relied on 39 exhibits and 15 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Sec.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. On the side of the defence, one witness was examined as D.W.1, and 12 documents were marked as Exs.D1 to D12. On completion of evidence, the trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants/A-1 to A-8 guilty and awarded the punishment as referred to above. By the same judgment, the trial Court has made an order of acquittal of A-9 to A-14. Hence this appeal at the instance of the appellants.
4.Advancing arguments on behalf of A-1 to A-3, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, according to the prosecution, eyewitnesses marched were P.Ws.1 to 7 out of whom P.Ws.3, 4, 5 and 7 were shown as injured witnesses; that out of them, P.Ws.4 and 7 have turned hostile; that P.W.5 did not support the case of the prosecution; but, he was not treated as hostile; that his evidence in the chief-examination was in tact; that under the circumstances, the only injured witness available for the prosecution was P.W.3; that the trial Court has readily accepted the evidence of P.W.3; but it should not have done so; that P.W.2 was claimed to be an eyewitness; that he has candidly admitted that when he was examined by the police officer on 5.11.2007, itself and the statement was recorded under Sec.161 Cr.P.C., he has not spoken about the occurrence or he has not spoken about any one of the accused involved in the crime; that further, this fact is also candidly admitted by the Investigating Officer, and hence his evidence was not useful to the prosecution case; that under the circumstances, what was available for the prosecution barring his evidence, was that of P.Ws.1, 3 and 6 out of whom P.W.3 was the only injured witness; that the trial Court should have rejected his evidence outright; and that so many lacunas and infirmities were brought to the notice of the trial Court.
5.Added further the learned Senior Counsel that according to the prosecution, the FIR has come into existence at about 9.45 A.M. at the respondent police station for which an information was received by one Sridhar, the Sub Inspector of Police, when he was in the police station, and he immediately rushed over to the hospital and enquired P.W.1, and the statement of P.W.1 was recorded by P.W.23, the Sub Inspector of Police, which is marked as Ex.P1; that when Ex.P1 is looked into, the place and the time when it was recorded are not made mention; that apart from that, as far as the FIR is concerned, there is some alteration; that the prosecution has not explained how it happened; that for those, the prosecution in its fairness should have examined the said Sridhar, the Sub Inspector of Police; but, he was not examined; that it was fatal to the prosecution; that the prosecution claimed that the case was registered at 9.45 A.M. on the strength of Ex.P1, the report; that it is an admitted position that the police station is situated within 3 kilometers from the Court; that under the circumstances, the FIR should have reached the Court immediately, but not so; that apart from that, though the Investigator claimed that the inquest was between 12.00 Noon and 2.00 P.M., the FIR has reached the Court at about 5.00 P.M.; that at this juncture, it is pertinent to point out that the delay in the FIR reaching the Court would clearly indicate that the FIR should have come into existence only belatedly to suit the convenience of the prosecution case; that this position is fortified from the inquest report; that the inquest report though claimed to have been prepared between 12.00 Noon and 2.00 P.M. on 5.10.2007, it has reached the Court the next day; that when Ex.P38, the inquest report, is perused, it does not contain neither the names of the assailants nor any one of the accused nor the names of the witnesses were mentioned; that this would be fatal to the prosecution case; that had it been true that the witnesses were available as claimed by the Investigator at the time of the inquest, there could not have been any impediment for mentioning the names of the witnesses and also the names of the accused and thus it would be quite clear that the inquest report was not prepared as put forth by the prosecution.
6.Added further the learned Senior Counsel that in the instant case, when the case is viewed from this point of view, it would be quite clear that Ex.P1 document and the corresponding FIR could not have come into existence as put forth by the prosecution; that it could also be seen that the prosecution could not fix the time of occurrence; that the prosecution story before the trial Court was that the occurrence has taken place at about 5.45 A.M., but, the witnesses would speak that it has taken place at about 4.00 A.M.; that further the accident registers and the wound certificates of the deceased and the witnesses respectively were produced by the defence as defence documents; that all would clearly indicate that the time of occurrence was mentioned as 4.00 A.M.; but, the case of the prosecution is that it was at about 5.45 A.M.; that the only witness much relied on by the prosecution was the so-called injured witness P.W.3; that the accident register copy of P.W.3 and also the wound certificate would clearly indicate that the occurrence has taken place at about 6.00 A.M.; that further, the General Diary of the Police Station would clearly indicate that a telephone call was received by the sentry at 6.00 A.M. as if there was a clash between two groups at the place of occurrence, and the Sub Inspector of Police left the police station at about 6.20 A.M.; that all would clearly indicate that the police officials arrived at the spot earlier; and that if to be so, Ex.P1 could not have come into existence as put forth by the prosecution since it was shrouded with all suspicious circumstances.
7.The learned Senior Counsel would further add that there are discrepancies in the evidence of the witnesses and hence the trial Court was not ready to believe the case of the prosecution in respect of A-9 to A-14 even though their names are clearly mentioned, and overt acts are also attributed to them; but, on the same evidence, the trial Court has believed the case of the prosecution insofar as A-1 to A-8 and different parameters were taken for consideration; that under the circumstances, the prosecution has miserably failed to prove its case, and they are entitled for acquittal in the hands of this Court.
8.The learned Counsel appearing for A-4 and A-5, would submit that all the witnesses have spoken to the fact that the assailants attacked the deceased on the back side; but, no injury was found in the postmortem certificate, Ex.P7; and thus it was thoroughly discrepant; that as far as A-4 was concerned, number of injuries were stated to have been caused by him; but, the evidence of P.Ws.1, 2, 3 and 6 in that regard was thoroughly discrepant, and hence their evidence was not useful to the prosecution. He would further add that he would adopt the arguments put forth by the learned Senior Counsel as recorded above.
9.The learned Counsel appearing for A-6 to A-8 would submit that no overt acts is attributed to them; that as regards these accused, A-6 attacked P.W.3, and A-7 has attacked P.W.5; that they sustained simple injuries; that as far as A-8 is concerned, the evidence put forth was thoroughly discrepant; that there was no overt act on the deceased, and under the circumstances, the prosecution has miserably failed to prove its case.
10.The Court heard the learned Government Advocate (Criminal Side) on all the above contentions and paid its anxious consideration on the submissions made.
11.It is not in controversy that one Reagan met his end in an occurrence that took place on the morning hours of 5.10.2005, and the body was taken to the hospital where he was declared dead. Following the registration of the case and the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.8, the Doctor, who has given his categorical opinion that he died out of shock and haemorrhage due to injury to the neck. Thus the cause of death as put forth by the prosecution was never disputed by the appellant either before the trial Court or before this Court. Under the circumstances, no impediment is felt by the Court to record so.
12.In order to substantiate that the accused have constituted an unlawful assembly with the common object and attacked the deceased Reagan, and also in the course of the same transaction, P.Ws.3, 4, 5 and 7 were actually injured, the prosecution examined 7 witnesses as eyewitnesses. It is true that the prosecution could not bring forth its case through the evidence of P.Ws.4 and 7 though claimed to be the injured witnesses. Equally P.W.5 was actually shown as injured witness; but, he did not support the case of the prosecution as could be evident from the evidence recorded by the trial Court. He was also not treated as hostile; but at the time of the chief-examination, a question was actually in the nature of cross-examination. He should have been treated hostile; but, the prosecution failed to do so. Under the circumstances, the only one injured witness was shown as P.W.3. Apart from the evidence of P.W.3, the prosecution marched 3 witnesses namely P.Ws.1, 2 and 6 as eyewitnesses. As rightly pointed out by the learned Senior Counsel for the appellants, a perusal of the evidence of P.W.2 coupled with the evidence of the Investigating Officer would indicate that though he was examined the very day and his statement was recorded under Sec.161 Cr.P.C., he has not whispered anything about the assailants, and hence it would be quite clear that P.W.2 could not have seen the occurrence at all. In such circumstances, the evidence of P.W.2 has got to be eschewed. Thus what was available for the prosecution was the evidence of P.Ws.1, 3 and 6.
13.In the instant case, P.W.3 was the only injured witness available for the prosecution before the trial Court. What is material is the quality of evidence and not the quantity. Even though the evidence happened to be solitary, it can be accepted by the Court if it inspired the confidence of the Court; but, before acceptance, the Court must test the evidence by applying the circumstances. It is well settled proposition of law that in a given case where an eyewitness happened to be an injured witness, his evidence should not be discarded unless and until a strong circumstance is noticed by the Court or reason is brought about. In the case on hand, it is true that P.W.3 was the only injured witness. Much comments were made on the evidence of P.W.3. The comment that was made at the outset was that P.W.3 was examined by P.W.9, the Doctor, at 9.20 A.M. in the hospital, and it is also evident from the accident register copy and wound certificate. The learned Senior Counsel criticising the evidence would submit that all the other injured witnesses were examined by the Medical Person between 6.20 and 6.45 A.M., and if to be so, when P.W.3 was taken along with them, he should have also been medically examined immediately; but, he was examined at about 9.20 A.M. At this juncture, the learned Senior Counsel brought to the notice of the Court that the time of examination of P.W.3 by the Medical Person was 9.20 A.M. The learned Senior Counsel would also rely on the accident register copy for that particular fact and also the fact that the time of occurrence is mentioned therein as 6.00 A.M. But, this Court is unable to agree with the contention put forth by the learned Senior Counsel for the simple reason that the time of occurrence mentioned in that wound certificate, was stated by his uncle one Subramaniam, who took him to the hospital. In such circumstances, it cannot be stated that what was found in the wound certificate was the statement made by the injured. Therefore the examination of P.W.3 by the Medical Person at about 9.20 A.M. or the time of occurrence mentioned as 6.00 A.M. in the accident register copy will not in any way take away the truth of the prosecution case.
14.The only question that would arise for decision at this juncture is whether P.W.3 could have been injured in the course of the same transaction or not. Now, it would be quite clear that he has narrated the entire incident, and the statement recorded under Sec.161 Cr.P.C. reached the Court the very next day. That apart, the corresponding injuries what is spoken to by the witness, are actually found in the wound certificate issued to him. Further, it is brought to the notice of the Court that the names of the witnesses had they really been examined by the Investigator, should have been found in the inquest report. But this Court is of the view that the non-mention of the names of the witnesses by itself cannot be a reason to suspect the prosecution case. The learned Senior Counsel also brought to the notice of the Court that the names of the assailants are also not made mention in the inquest report, and if the inquest report had come into existence later after the case was registered, the names of the assailants should have been mentioned, but not done so. This contention, in the considered opinion of the Court, cannot be accepted for the simple reason that in the course of the inquest report, the crime number and the provision of law under which the assailants are booked are all mentioned. The Investigator has candidly admitted at the time of the cross-examination that by mistake he has omitted to mention the names of the accused. It is also pertinent to point out that the inquest report is always prepared by the Investigator which would speak of the cause of death. The non-mention of the names of the assailants if to be omitted by a mistake or otherwise, by itself cannot be taken as a circumstance shaking the prosecution evidence or its case.
15.The learned Senior Counsel also contended that the FIR has reached the Court belatedly. In the case on hand, the occurrence has taken place in a place where from the deceased was directly taken to the hospital, and he was declared dead. The injured persons were also in the hospital taking treatment. From the evidence, it would be quite clear that at about 6.00 A.M., in the respondent police station a Constable received the message, and on receipt of the message, the Sub Inspector of Police went over to the hospital which is situated about 7 kilometers therefrom, and in the hospital, Ex.P1, was recorded, and thereafter he came back, and a case was registered and then the investigation was on. It is true that there was a delay in the FIR reaching the Court. But merely because of this delay in the FIR reaching the Court, this Court is unable to see that the prosecution case would fail, since there were not only number of eyewitnesses, but also injured witnesses available. Unfortunately, some of the injured witnesses have turned hostile. But, the evidence of P.W.3 though happened to be the injured witness, stood fully corroborated by the evidence of P.W.1, and in view of this coupled with the medical evidence, this Court is of the considered opinion that the evidence of P.W.3 has inspired the confidence of the Court.
16.Apart from the above, there is time discrepancy brought to the notice of the Court. At one place, it is mentioned as 4.00 A.M. in the accident register copy. It is pertinent to point out that it was not mentioned by any one of the injured; but, by the persons who took them, and who are not eyewitnesses. The time of occurrence mentioned as 5.45 A.M. does not make much difference in the considered opinion of the Court. They are all rustic witnesses who were not wearing watch at that time, and it was also in the month of October and nearby the seashore, and hence they have given approximate time. The same in no way would shake the truth of the prosecution case.
17.Besides above, certain discrepancies were brought to the notice of the Court in respect of the overt acts attributed to the accused how they attacked the deceased and other witnesses. But this Court is unable to agree with the same for the reason that at the time of occurrence, when number of persons were attacking the deceased and other witnesses, no one can have meticulous memory to speak about the same. It remains to be stated that discrepancies are bound to occur; but, they are not on the material side. It is pertinent to point out that all the prosecution witnesses and the deceased remained unarmed. But at the same time, all these appellants/accused were armed with deadly weapons like parangi and sulluki when the occurrence has taken place. Thus it would be quite clear that they constituted an unlawful assembly with the common object and went over to the spot, and in furtherance of the common object, they made the attack and caused the death of the accused and also injuries to P.W.3. However, the prosecution has not proved the charge under Sec.326 r/w 149 IPC (two counts), and the appellants are entitled for acquittal in that regard. Accordingly, the judgment of the trial Court finding the appellants guilty under Sec.326 r/w 149 IPC (two counts) and awarding punishment is set aside, and they are acquitted of that charge. The fine amount if any paid by them will be refunded to them.
18.For the reasons stated above, the prosecution has proved the charges under Sections 148, 302 r/w 149 and 324 r/w 149 IPC levelled against the appellants. The trial Court was perfectly correct in finding the appellants/ accused guilty and in awarding the punishment. There is nothing to interfere with the judgment of the trial Court and hence it has got to be affirmed. Therefore, this criminal appeal fails, and the same is, accordingly, dismissed.
nsv
To:
1.The III Additional Sessions Judge
Puducherry
2.The Inspector of Police
Thavalakuppam Police Station
Puducherry
(Cr.No.173/2005)
3.The Public Prosecutor
Pondicherry